Orissa High Court
State Of Orissa vs Harjeet Singh Alias Saka Alias Kana on 23 June, 2017
Author: Biswajit Mohanty
Bench: I.Mahanty, Biswajit Mohanty
ORISSA HIGH COURT: CUTTACK
DSREF No.04 of 2015
and
JCRLA No.69 of 2015
Arising out of the judgment of conviction dated 21.11.2015 and
order of sentence dated 23.11.2015 passed by the learned Addl.
Sessions Judge, Champua in S.T. No.96 of 2013.
DSREF No.04 of 2015
State of Orissa ...... Appellant
-versus-
Harjeet Singh @ Saka @ Kana ...... Respondent
For Appellant : Mr. Janmejaya Katikia, A.G.A
For Respondent : Mr. Debashis Panda & Mr.D.P.Dhal,
Amici Curiae
JCRLA No.69 of 2015
Harjeet Singh @ Saka @ Kana ...... Appellant
-versus-
State of Orissa ...... Respondent
For Appellant : Mr. Debashis Panda & Mr.D.P.Dhal,
Amici Curiae
For Respondent : Mr. Janmejaya Katikia, A.G.A
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Date of Judgment: 23.06.2017
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE I.MAHANTY
AND
THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY
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Biswajit Mohanty, J. Since both the Death Reference and Jail
Criminal Appeal arise out of the judgment of conviction dated
21.11.2015 and order of sentence dated 23.11.2015 passed by the
learned Addl. Sessions Judge, Champua in S.T. Case No.96 of 2013,
these were heard together and are disposed of by this common judgment.
2. By the impugned judgment and order, the sole convict has been
sentenced to capital punishment under Sections 302/34 IPC. Further,
he has been sentenced to imprisonment for life under Section 376 (2) (g)
of IPC. He has also been senteneced to undergo R.I. for five years under
Sections 201/34 IPC. The learned trial court has made clear that both
the sentences under Sections 376(2)(g)/201/34 IPC are to run
concurrently. No sentence exists with regard to payment of any fine. The
reference made by the learned trial court under Section 366 of Cr.P.C. for
confirmation of death sentence has been registered as DSREF No.4 of
2015 and the appeal preferred by the the convict has been registered as
Jail Criminal Appeal No.69 of 2015.
3. The case of the prosecution in brief is that on 1.8.2012 the
deceased girl, namely, Bindhia Mahakud aged about 13 years, a student
of Class-VIII of Barbil Municipality High School had gone to attend the
tuition under P.W.5 at 7.00 A.M. She was expected to return by 9.00
A.M. But as she did not return to her house by 9.00 A.M., the informant
(P.W.2) gave a phone call to P.W.1, the tuition teacher, who replied that
the deceased left for her house after tuition at about 9.00 A.M. In such
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background, P.W.2 (informant) along with his relatives (P.Ws.3,5 & 9)
searched for the deceased in different places and around 2.00 P.M., the
dead body of the deceased was found inside Baghiahudi jungle in a
naked condition with a piece of cloth in her mouth and various injuries
on her person. Then, P.W.2 along with others brought the deceased to
Barbil Hospital and around 4.00 P.M. of the same day, P.W.2 lodged
F.I.R. under Ext.1 indicating therein that his daughter has been raped
and murdered by somebody. Basing on such information, P.W.29, the
first I.O. registered Barbil P.S.Case No.128 of 2012 and took up
investigation of the case. During investigation, inquest was held and on
the same day, i.e., 1.8.2012, P.W.11 conducted the postmortem
examination over the dead body. Further, in course of investigation,
various witnesses were examined and on 13.8.2012, Mata Munda, Jiten
Munda and Biswanath Gope@Naru were arrested. Further, on 13.8.2012
Mata Munda led to recovery of a "Dauli", the weapon of offence after his
statement was recorded under Ext.17 as found from LCR and
accordingly, seizure memo was prepared under Ext.6/1. Similarly, on
13.8.2012 Jiten Munda led to recovery of black colour School bag, some
torn books, one ball pen and a rolling khata after his statement was
recorded under Ext.18 as found from LCR and accordingly, seizure
memo was prepared vide Ext.19. On 6.9.2012, Tapu @ Mangal Purty @
Suri was arrested by P.W.29 Further, during course of investigation,
several other things were seized, which have been marked as Exibits. On
25.9.2012, the investigation was taken over by P.W.28, who is the
second I.O. He sent the wearing apparels and biological sample of the
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deceased and wearing apparels of Mata Munda, Jiten Munda, Biswanath
Gope @ Naru and Tapu @ Mangal Purty @ Suri and their biological
samples along with one "Dauli" to S.F.S.L., Rasulgarh, Bhubaneswar for
their chemical examination. On 5.12.2012, he submitted the charge
sheet against the above four persons under Sections
376(2)(g)/302/201/34, I.P.C. showing Harjeet Singh @ Saka @ Kana,
Bablu Sandil and Sikandar Singh @ Sachindar as absconders. Since the
alleged offences were triable by the Court of Sessions, the case was
commited to the court of learned Addl. Sessions Judge, Champua for
their trial. Learned trial judge framed charges under Sections
376(2)(g)/34, I.P.C., Section 302/34 IPC and under Section 201/34 IPC;
to which they pleaded not guilty and claimed to be tried. Accordingly,
they faced trial in S.T. No.09/2013. On 18.6.2013, present convict-
Harjeet Singh @ Saka @ Kana was arrested by P.W.28 and was sent for
medical examination. His biological sample and wearing apparels were
also collected. On 20.8.2013, the case involving convict-Harjeet Singh @
Saka @ Kana was committed to the court of learned Additional Sessions
Judge, Champua for his trial. The learned trial Judge on 24.10.2013
framed charges under Section 376(2)(g), I.P.C., Section 302/34, I.P.C.
and under Sections 201/34, I.P.C., to which he pleaded not guilty and
claimed for trial. Accordingly, he faced trial in S.T. No.96 of 2013.
4. In order to prove its case, in S.T. No.96 of 2013 the prosecution
has examined as many as 29 witnesses including the doctors and
investigation officers besides exbiting 27 documents. In his statement
under Section 313 Cr.P.C., the convict took the plea of denial. Further,
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the convict did not choose to examine any witness in support of his
defence. On culmination of trial, the convict-appellant was found guilty
for commission of offences punishable under Sections
376(2)(g)/302/201/34 IPC and accodingly he was convicted and
sentenced as already stated herein before. In coming to such a
conclusion, the learned trial court mainly relied on the version of P.W.20
and the eye-witness version of P.W.16. He has also relied on statements
of Mata Munda and Jiten Munda recorded under Section 27 of the
Indian Evidence Act, 1872 implicating the present convict and the
evidence of P.W.11, the Doctor conducting Post Mortem report. It is
important to note here that Mata Munda, Jiten Munda, Biswanath Gope
@ Naru and Tapu @ Mangal Purty @ Suri stood their trial in S.T. Case
No.9 of 2013 and were also convicted likewise. For this, they filed JCRLA
No.70 of 2015 before this Court and likewise, reference was also made by
the learned trial court under Section 366, Cr.P.C. for confirmation of
their Death Sentence. The same has been registered as DSREF No.3 of
2015.
5. Mr. Debashis Panda and Mr.D.P.Dhal, learned Amici Curiae
appearing for the convict-appellant advanced the following arguments:-
(a) The learned trial court according to them has gone wrong in
convicting Harjeet Singh @ Saka @ Kana as neither P.W.16 nor even
P.W.20 while stating the names of convicts-Mata Munda and Jiten
Munda, has not named the sole convict. Thus, according to them, there
exists no evidence against Harjeet Singh @ Saka @ Kana to implicate him
in this case. They put special emphasis on the fact that though P.W.16
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and P.W.20 deposed that they knew all the convicts, however, strangely
while they took the names of Mata Munda and Jiten Munda, they never
took the name of Harjeet Singh @ Saka @ Kana.
(b) Further, the learned trial court should not have relied upon the
evidence of P.W.16, as he was examined by the police, seven days after
the date of occurrence. In this connection, they relied on a decision of the
Supreme Court in the case of State of Orissa v. Mr. Brahmananda
Nanda reported in (1976) 4 SCC 288. Further, P.W.16 has not been
supported by P.W.21, who happens to be his brother. This is also one of
the reasons as to why the learned trial court should not have believed
the version of P.W.16.
(c) With regard to the evidence of P.W.20, both the learned Amici
Curiae submitted that his evidence ought not to be believed on account
of his peculiar behaviour, who despite claiming to have witnessed lifting
of the deceased by Mata Munda and Jiten Munda at about 9.30 A.M.
morning, chose to remain silent in the matter till evening without coming
to the help of the deceased and by not informing the poice authorities
immediately. According to the learned Amici Curiae, he has not seen any
thing and is a set up witness and his version ought not to be believed.
Further, from his own evidence, it is clear that he has been examined by
the police 11 days after the date of occurrence though he claimed to have
narrated the incident on the same evening to one A. Ramachandra Naik,
A.S.I., who has not been examined this case. All these make the version
of P.W.20 suspect and his evidence ought not to have been relied upon
by the learned trial court.
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(d) There exists no evidence to show any motive/pre-planning for
committing such crime vis-à-vis the present convict. According to them,
the circumstancial evidence for arriving at a conclusion of muder being
committed by present convict is not fool-proof as the chain of
circumstance is not complete.
(e) By not examining Rebati Behera about whom P.Ws. 2, 3,4 and
13 have deposed; the prosecution has deliberately withheld an important
witness and this should be viewed unfavourably, in the background of
Section 114 (g) of the Indian Evidence Act.
(f) A scanning of evidence of P.W.11 according to both the learned
Amici Curiae for the convict and more particularly the nature of injuries
described by P.W.11 cannot lead to a conclusion that this is a case of
gang rape.
(g) Learned trial court has gone wrong in relying on the entire
statements of Mata Munda and Jiten Munda as rendered under Section
27 of the Indian Evidence Act, travelling beyond the well defined
requirements under Section 27 of the Indian Evidence Act. The learned
trial court has unnecessarily believed the entire statements of the
convicts Mata Munda and Jiten Munda involving the present convict
forgetting the requirements of Section 27 of the Indian Evidence Act as
has been made clear by the decision of Privy Council in Pulukuri
Kottaya and others v. Emperor reported in AIR (34) 1947 Privy
Council 67. Both the learned Amici Curiae further submitted that
evidence even with regard to recovery of "Dauli", "School bag", "Ball Pen"
& "Books" is inadmissible, as these were never produced and proved
8
before the learned trial court. Since these were never produced, these
could never be confronted to the seizure witnesses, P.Ws.10 and 15.
Further, the "School bag", "Ball Pen" & "Books" also could not be
confronted to the father of the deceased- P.W.1, mother of the deceased-
P.W.2, sister of the deceased-P.W.3, and brother of the deceased-P.W.4
for identifiation. Therefore, the discovery of "Dauli", "School bag", "Ball
Pen", "Books" & "Khatas" are of no consequence and should have been
ignored by the learned trial court. Instead of doing that, the learned trial
court wrongly placed reliance on these materials.
6. In such background, both the learned Amici Curiae pointed out
that the Jail Criminal Appeal should be allowed and the death reference
be discharged by setting aside death sentence. However in the alternative
they submitted that even if this Court comes to a conclusion that the
convict is the the author of crime as has been found by the learned trial
court even then in the factual background of the present case, imposition
of death penalty is uncalled for as the learned court below has not
discussed all the mitigating factors in favour of the convict. Secondly,
prosecution has not led any evidence with regard to probability of the
convict committing criminal acts in future so as to constitute a
continuing threat to the society and with regard to probability that the
convict can not be reformed and rehabilitated. Further, they submitted
that since there exists no proof of criminal antecedent against the
convict, this is another mitigating facts in his favour. Lastly, they
submitted that out of the seven accused pesons, five have been convicted
while two are absconding. In case after execution of death sentence, the
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two absconders are arrested and after such arrest, they confess to have
committed murder for some other reasons after departure of the five
convicts from the spot of occurrence, then the confirmation of death
sentence would constitute grave miscarriage of justice. They further
argued that unlike any other punishment, a capital punishment is
irrevocable. Further, since there exists no direct evidence relating to
murder of the deceased being committed by present convict, in such a
situation, the capital punishment is uncalled for. In this context, they
relied on the decisions of the Supreme Court in Shankar Kisanrao
Khade v. State of Maharashtra reported in (2013) 55 OCR (SC) 623
and State of Maharashtra v. Nisar Ramzan Sayyed reported in
2017 SCC Online SC 356.
7. Mr. J.Katikia, learned Addl. Government Advocate while
supporting the judgment and sentence of conviction of the learned trial
court, submitted that on account of delay in examining P.W.16 the
version of the eye-witness-P.W.16, cannot be disbelieved as he was
threatened to be killed by convict-Mata Munda. In addition to this,
P.W.11 has also corroborated the commission of rape by deposing that
the genital injury on the deceased strongly suggest sexual assault. In
this context, he relied on the decision of the Supreme Court in Banti @
Guddu v. State of Madhya Pradesh reported in (2004) 1 SCC 414.
Relying on the said decision, Mr. Katikia submitted that unless the
Investigating Officer is categorically asked as to why there was delay in
examination of the witness, the defence cannot get any advantage
therefrom. Here, admittedly no such question was asked by the defence
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to any of the I.Os. With regard to the evidence of P.W.20, he submitted
that the same partly corroborates the version of P.W.16 with regard to
lifting of the deceased. Merely, because P.W.20 did not come forward to
the report the matter to the police immediately, his version cannot be
rejected on the ground that he is a set up witness. With regard to
argument of learned Amici Curiae relating to absence of planning and
motive, Mr. Katikia, learned Addl. Government Advocate submitted that
the version of P.Ws.16 & 20 would show that there was pre-planning
amongst the convicts to commit the crime. With regard to non-
examination of Rebati Behera, Mr. Katikia, learned Addl. Government
Advocate submitted that none of the P.Ws.3,4,5 & 13, who deposed
about her told anything about Rebati Behera having told them anything
about the incidents of either rape or murder. In such background, for
non-examination of Rebati Behera, no adverse inference can be drawn.
With regard to the argument that P.W.11 nowhere says that the deceased
was a victim of gang rape, Mr. Katikia, learned Addl. Governemnt
Advocate relying on Explanation-(1) to Section 376 IPC as it stood on the
date of occurrence submitted that it is clear that where a woman is raped
by one or more in a group of persons acting in furtherance of their
common intention, each of the persons shall be deemed to have
committed gang rape within the meaning of sub-section (2) of Section
376 IPC. Further, he argued that with regard to conviction for commiting
the offence of murder, the convicts were last seen with the deceased as
stated by P.W.16 and P.W.20 at about 9.30 to 10.00 A.M. on 1.8.2012
and the dead body was located inside the jungle at around 2.00 P.M. of
11
the same day and the convicts including Harjeet Singh @ Saka @ Kana
have offered no explantion in their statements under Section 313 Cr.P.C.
Further, as per the evidence of P.W.11, who carried out the postmortem
at 9.00 P.M. on 1.8.2012, the time since death was within 6-12 hours.
Further, convicts-Mata Munda and Jiten Munda gave recovery of "Dauli",
"School bag" and other materials respectively pursuant to their
statements before the police. Thus, there existed enough circumstantial
evidence to come to a conclusion that the convicts including Harjeet
Singh @ Saka @ Kana were the authors of the murder of the deceased. In
such background, he submitted that the learned trial court has correctly
convicted Harjeet Singh @ Saka @ Kana under Sections 376 (2)
(g)/302/201/34 IPC, & correctly awarded the various sentences.
Further, he submitted in the facts and circumstances that the capital
punishment as awarded by the learned trial court ought not to be
touched. In this context, he relied upon the decisions of the Supreme
Court in Bachan Singh v. State of Punjab reported in (1980) 2 SCC
684, Machhi Singh and others v. State of Punjab reported in (1983)
3 SCC 470, Laxman Naik v. State of Orissa reported in (1994) 3
SCC 381, Vasanta Sampat Dupare v. State of Maharashtra
reported in (2015) 1 SCC 253 and Purusottam Dashrath Borate and
another v. State of Maharashtra reported in (2015) 6 SCC 652.
In the alternative, Mr. Katikia, learned Addl. Government Advocate
submited in case while upholding the conviction under Sections 302/34,
I.P.C., this Court feels not inclined to impose capital punishmenet and
wishes to alter the same, then the convict should be sentenced to life
12
imprisonment with minimum 25-35 years of jail term without remission
or till the rest of his natural life. In this context, learned Addl.
Government Advocate relied on the decisions of the Supreme Court in
Swamy Shraddananda @ Murali Manohar Mishra v. State of
Karnataka reported in (2008) 5 Sup.482, Raj Kumar v. State of
Madhya Pradesh reported in (2014) 5 SCC 353, Selvam v. State
through Inspector of Police reported in (2014) 12 SCC 274 and the
decision of this Court in State of Orissa v. Ardhu Chendreya reported
in (2010) 47 OLR 953.
8. Perused the L.C.R.
9. It is not disputed that the deceased was sexually assaulted and
met with a homicidal death. This has been clear as per the evidence of
P.W.11. Now, it is to be seen as to whether the present convict is one of
the authors of crime. For this, we have to analyse oral and documentary
evidence available in the L.C.R.
P.W.1 is the tuition teacher, who stated that on the date of
occurrence, the victim had come to her to take private tuition from 7.00
A.M. to 9.00 A.M. After 9.00 A.M. she along with others left for their
respective house. Around 9.30 A.M. to 10.00 A.M., P.W.2 telephoned her
and wanted to know if the victim had left her house after taking tuition
and she answered in the affirmative. On that date at about 3.00 P.M.,
she heard that the victim had been murdered after being raped by some
persons. She denied knowing the convict-Harjeet Singh @ Saka @ Kana.
In her cross-examination, she stated that the victim was a student of
Class-VIII and she never maintained any register for the student who
13
took tuition from her. She denied the suggestion that she has not stated
to police that P.W.2 had telephoned her to know if the victim had left her
house after taking tuition.
P.W.2 is the father of the deceased and informant in the present
case. In his deposition, he has stated that he knew the convict and the
occurrence took place on 1.8.2012 (Rakhipurnima day) at Bagiyahudi
jungle of Belakundi. According to him, the deceased was reading in
Class-VIII. She used to go to attend the tuition class under a lady teacher
who was residing near Forest Guest House at Barbil. On the date of
occurrence during morning hour, she went to tuition by walking and was
returning from the tution class at about 9.00 A.M. When she did not
return, P.W.2 gave a phone call to the tuition teacher, who answered that
the deceased has left her house after tuition at about 9.00 A.M. Not
convinced, P.W.2 went to the tuition teacher's house and contacted her
personally and got confirmed from her that his daughter in fact had left
her house at about 9.00 A.M. after tuition. Then, he also contacted fellow
classmates of his daughter and became confirmed of the fact that his
daughter has left the house of the tuition teacher at about 9.00 A.M.
after tuition. Thereafter, he searched for his daughter and while
searching, he could get the brief (underwear) of his daughter, which was
identified by his wife (P.W.5), who was also searching for the deceased
daughter. During search, P.W.2 was joined by many co-villagers and the
dead body of his daughter was located lying about 150 meteres away
from the place where the brief of the deceased was lying, in a naked
condition. He found the dead body with a piece of cloth pushed into the
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mouth with cut injuries. According to him, there was bleeding injuries
along with white discharge from her vagina and they put the brief on the
dead body and took her to Barbil medical. From the above condition, he
suspected that his daughter has been raped and murdered by some
pesons and accordingly he reported the matter to the police. He proved
Ext.1 dated 1.8.2012 as F.I.R. He was examined by the police, and,
thereafter, police held inquest over the dead body and accordingly
prepared the inqeust report (Ext.2). In his cross-examination, he has
stated that he has not seen the occurrence and has no direct knowledge
about the same. The police scribed the F.I.R. as per his narration. When
he first saw the dead body, his brother (P.W.13) was there with him.
Further according to him, injuries caused to his daughter appeared to
have been caused by the blunt side of a weapon. On the day after the
occurrence, he heard from the villagers that the convict along with others
were the authors of the crime. Accordingly, he informed the police about
the above fact. He denied a suggestion that he had never stated before
the police that when he detected the naked body, he found a piece of
cloth pushed into her mouth and there was bleeding injuries and
presence of white discharge on her vagina.
P.W.3 is the brother of the decased. He deposed that the
occurrence took place on 1.8.2012 during monrning hour. The deceased
used to go to take tuition from a private tutor at about 7.00 A.M. and
return at about 9.00 A.M. On the date of occurrence, as she did not
return, P.W.2 went to the tuition teacher, where he learnt that the
deceased had already left after taking tuition, and, thereafter, P.W.2
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contacted her friend and could know that in fact after tuition, she was
returning to the house. Thereafter, P.W.2 started searching and on the
way, it was informed by one Rebati Behera that she had seen the
deceased while returning from tuition along the public road near
Baghiahudi jungle. Thereafter, P.W.2 and P.W.5 along with others went
to Baghiahudi jungle in search of the deceased. He (P.W.3) also
accompanied them. Initially, the brief (underwear) of the deceased was
located. On further search, the dead body was found lying under a tree
in a naked condition with a herbal rope tied to the neck with injuries on
her chest and body. Thereafter, the victim was removed to the medical
where she was declared dead. In his cross-examination, he has stated
that he saw the dead body at about 2.00 P.M. and P.W.4 was all along
present in her house and she was informed about the death of the
deceased in the evening. He denied a suggestion that he has not stated to
the police that there were injuries on the person of the deceased sister
when they located her dead body. Thus, the evidence of P.W.3 broadly
corroborates the evidence of P.W.2.
P.W.4 is the sister of the deceased, who in her deposition stated
that on the date of occurrence during morning hour at about 7.00 A.M.,
the deceased went to take tuition to the house of her tuition teacher
which is located near a forest bunglow of Barbil. She was supposed to
return at about 9.00 A.M. As she did not return, P.W.2 contacted with
her friend and could know that after tuition, she left the house of her
tuition teacher and thereafter, P.W.2 and some other co-villagers went in
search of the deceased and on the way one Rebati Behera told him that
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she had seen the deceased near Baghiahudi jungle on the public road
while returning from tution. Thereafter, P.W.2 could locate the brief
(underwear) of her sister which was identifeied by her mother-P.W.5 and
thereafater the dead body was located near the tree inside Baghuahudi
jungle with a piece of cloth in her mouth and injury on the dead body. In
her cross-examination, she admitted that she never accompanied P.W.2
and P.W.5 for searcing the deceased. Her information about occurrence
was based on information received from P.W.2 and P.W.5 and co-
villagers.
P.W.5 is the mother of the deceased and wife of P.W.2, who in her
deposition has stated that she knew the convict-Harjeet Singh @ Saka @
Kana since he is a co-villager and the occurrence occurred on 1.8.2012.
She reiterated the story as given out by P.W.2 relating to the deceased
going for tuition with a lady teacher and when the deceased did not
return by 9.30 A.M., P.W.2 went to the house of the tuition teacher and
from there he learnt that the deceased after completing her tuition had
left the house of the tution teacher at about 9.00 A.M. On the way, P.W.2
met one Rebati Behera who informed that she had seen the deceased-
daughter returning after tuition class by walking along the road near
Baghiahudi jungle. Thereafter, she (P.W.5) and her husband-P.W.2 and
others serached for her inside the jungle and P.W.2 could locate a brief
(underwear), which P.W.5 identified as the brief belonging to his
deceased daughter. Thereafter, they searched for the deceased and
ultimately could locate the naked body with a piece of cloth pushed into
the mouth and a small rope tied to her neck with injuries on her chest
17
and her vagina was bleeding with white discharge. They put the brief on
the decased and removed her to the Barbil medical, where she was
declared dead. From the injury and circumstances, she believed that the
deceased was raped and then killed. In her cross-examination, she
admitted that she never stated before the police that she found the injury
on the person and vagina of the deceased. She also admitted that she
had not seen the occurrence and thus she did not have any direct
knowledge about rape and murder. She also stated that the dead body
was found at around 2.00 P.M. and on the date of occurrence, the
deceased was wearing a two piece dress having mixed white colour and
green. Thus, broadly P.W.5 corroborates the evidence of of P.W.2.
P.W.6 is the doctor, who had examined convict-Mata Munda on
13.8.2012 and found him capable of doing sexual intercourse. On the
same day, on police requision, he had also examined convict-Jiten
Munda and found him capable of doing sexual intercourse. However, he
did not find any physical clue of recent sexual intercourse from the
clothings worne by Mata Munda and Jiten Munda. He proved Exts.3 and
4. The defence declined to cross-examine P.W.6.
P.W.7 happens to be the President of Mahila Mahasangha
Samabaya Samiti and a social worker. In her deposition, she stated that
she did not know about the convicts. The occurernce took place on
1.8.2012 at Belakundi jungle. On that date while she was present in her
office, one Ashok Prajapati telephoned her from the medical informing
her about rape and murder of a young girl. She reached the medical at
around 4.00 P.M. and found a number of critical injuries on the dead
18
body. She also stated that there was bleeding injury on the private part
of the victim. In her presence, police held inquest and she signed the
inquest report. In her cross-examination, she admitted that she did not
know the convicts.
P.W.8 is the Doctor, who examined convict-Mata Munda on
12.8.2012 and found simple injuries on his person.
P.W.9 happens to be the younger brother of P.W.2 (informant). In
his deposition, he has stated that he knew the convict-Harjeet Singh @
Saka @ Kana present in the dock. The occurrence took place on 1.8.2012
(Rakhipurnima day). On that day, after taking tuition though the
deceased left the house of the tuition teacher at about 9.00 A.M., as she
did not return, her tuition teacher was contacted and they could know
that she had left her tuition teacher at about 9.00 A.M. Therefter, a
search was launched for the deceased and initially a brief was located.
Then, the dead body was found near a Kusum Tree in a naked conditon
at Baghiahudi jungle. The body was removed to Barbil Medical where she
was declared dead. Thereafter, the matter was reported to police. Police
held inquest over the dead body. After postmortem, it could be known
that the deceased was raped and subsequently killed. He also referred to
the confessional statement of Mata Munda recorded under Ext.17 as per
L.C.R. In his cross-examination, he stated that Mata Muna confessed his
guilt while the police personnel were present. He however admitted that
he did not have any direct knowledge about the occurrence, but he
deposed that P.W.10 was prsent when Mata Munda confessed his guilt.
P.W.9 broadly corroborates the evidence of P.Ws.2,3 and 5.
19
P.W.10 in his deposition made it clear that he did not know Harjeet
Singh @ Saka @ Kana. According to him, the occurrence took place on
1.8.2012 (Rakhipurnima day). After taking tuition, the deceased had left
house of the tuition teacher at 9.00 A.M. As she did not return, her
tuition teacher was contacted and it could be known that the deceased
had left the house of her tuition teacher at about 9.00 A.M. Thereafter,
he along with others seached for the deceased. Initially, a brief was
located, then, the dead body was found lying naked under a Kusum tree
near at Baghiahudi. Immediately, the dead body was removed to Barbil
medical where she was declared dead. Thereafter, the matter was
reported to the police. Accordingly, police held inquest over the dead
body and after postmortem report, it could be known that the deceased
was raped and subsequently murdered. On 13.8.2012, the convicts were
arrested and Mata Munda admitted his guilt and he also proved his
signature marked as Ext.2/4 on the inquest report (Ext.2). In his cross-
examination he has staed that when Mata Munda confessed his guilt,
police personnel were present. However, he admitted that he did not have
any direct knowledge about the occurrence. P.W.10 broadly corroborates
P.W.9 and with regard to search, finding of brief and location of the dead
body he broadly corroborates the version of P.Ws.2,3 and 5.
P.W.11 conducted the postmortem examination and noted a
number of external injuries in the form of bruises, abrasion and
lacerated injury. She also noted six internal injuries including rupture of
hymen and presence of blood clot in the genital of the deceased. P.W.11
opined that the cause of death was due to asphyxia on account of
20
mechanical pressure on chest and neck. Time since death was within 6-
12 hours at the time of postmortem examination, which was conducted
on 1.8.2012 at 9.00 P.M. She also stated that the genital injury strongly
suggested a sexual assault and nature of death was homicidal. She also
stated that on 20.8.2012, the weapon of offence, 'Dauli' was produced
before her for seeking her opinion as to if the injuries found upon the
dead body could be possibly done by that 'Dauli'. She answered that
query in the affirmative. The reply to the query was proved by her as
Ext.9 as found from the L.C.R. She also stated that since she received
the dead body at the initial stage, she drew up a casuality memo and
reported the matter to the police at 3.45 P.M. In her cross-examination,
she stated that she could not say as to who produced the dead body
before her as the same has not been noted in the casuality memo under
Ext.10 as found from the L.C.R. She also opined that it is not possible for
a robust boy to commit forcible rape against a young girl by embracing
her upon the land. She also stated that asphyxial death cannot be
possible unless mouth and nustril are forcibly closed.
P.W.12 is a witness to the inquest. In the cross-examination, he
stated that he had no knowledge about the occurrence.
P.W.13 has stated that 1.8.2012 was a holiday and thus his
children did not attend the school. Though he used to give lift to the
deceased; on that date, the deceased went to take tuition by walking.
After taking tuition, she returned by walking but did not reach her
house. Thereafter, P.W.2 enquired from the tuition teacher and came to
know that after her tuition at about 9.00 A.M., the deceased had left her
21
house. In such background, P.W.13 along with the parents of the
deceased and others came for search. On the way, they met Rebati
Behea, who told them that she had seen the deceased coming along the
road near Baghiahudi. Thereafter, they went to Baghiahudi and first
located a brief, which was identified by P.W.5. On further search, the
naked dead body of the daughter of the victim was located and her neck
was found tied by a herbal branch. Thereafter, they removed the victim
to Barbil medical where she was declared dead. Later on, inquest was
held and he learnt that the convict-Harjeet Singh @ Saka @ Kana and
other accused persons have committed rape and murder of the victim. In
his cross-examination, he stated that by 2.8.2012, he had knowledge
that the victim was raped and murdered by the convict - Harjeet Singh @
Saka @ Kana along with others. However, he admitted that he has not
stated before police that the present convict along with others raped and
murdered the victim. Further, he stated that one shepherd boy of their
village told him to have seen the convicts commiting rape and murder.
Thus, P.W.13 broadly corroborates the version of P.Ws.2,3,4,9 and 10
relating to non-return of the victim to her residence, finding of the brief
and location of the dead body.
P.W.14 is the constable attached to Barbil P.S. Accoding to him on
1.8.2012, P.W.8 produced the wearing apparels of the deceased before
P.W.29, who seized the same as per the seizure list at Ext.11 of L.C.R.
On 3.8.2012, P.W.23 produced a cassettee of postmortem examination
before the I.O. which was seized as per the seizure list, Ext.12 of L.C.R.
On 13.8.2012, the I.O. seized the wearing apparels of the convicts as per
22
five seizure lists marked as Exts.7,13,14,15 & 16 as found from L.C.R. In
his cross-examination, he made it clear that seizures were effected in his
presence and he denied a suggestion that nothing has been seized by the
police. It may be noted here that the wearing apparels of Harjeet Singh @
Saka @ Kana was seized vide Ext.16 of L.C.R.
P.W.15 is the neighbour of P.W.2. According to him, he knew the
victim as well as the convict- Harjeet Singh @ Saka @ Kana, who is the
co-villager. The occurrence took place on 1.8.2012. On that day, victim
had been to take tuition from her tuition teacher, who resided near the
forest office, Barbil. As she did not return, his family members and he
himself searched for her, located her dead body with injury on her chest.
Then they removed the victim to the medical, where she was declared
dead. He also stated that convict-Mata Munda confessed his guilt before
police in his presence and disclosed that he assaulted the victim on her
chest by blunt side of 'Dauli' consequent upon which she was killed.
Then he concealed the 'Dauli' under a simulia tree. His statement was
recorded by the police, and, thereafter, he led the police to the place of
concealment of 'Dauli' and gave recovery of the same. The seizure list
pertatining to the seizure of 'Dauli' was proved by him. He also stated
that the wearing apparels of convict-Mata Munda were also seized by the
police. In the cross-examination, he stated that Mata Munda gave his
statement which was recorded by the police under Section 27 of the
Indian Evidence Act at the police station about 12-13 days after the
occurrence. The seizure list in respect of 'Dauli' was prepared at the spot
of recovery. He denied a suggestion that nothing has been seized in his
23
presence and he is deposing falsehood. He admitted that the victim was
his niece by village courtesy.
P.W.16 appears to be the eye-witness with regard to commission of
offence of rape. In his deposition, he stated that he knew the victim and
the convict - Harjeet Singh @ Saka @ Kana was present in the dock. On
the date of occurrence, i.e., Rakhipurnima day of 2012 at about 10.00
A.M., he saw the convict-Mata Munda bringing victim to Baghiahudi
jungle where he and convict-Jiten Munda committed rape. When he saw
the act of rape, convict-Mata Munda threatened to kill him, if he
disclosed the fact to anybody. Out of fear, he left the place of occurrence
and went to his house and reported the matter to his brother-Jamda
Khadayat, who informed the incident to P.W.2. Since he was grazing
cattle in Baghiahudi jungle, he had the chance to witness the
occurrence. He had not seen the other convicts since they were
concealing their presence in the nearby area. He also stated that he
reported the matter to Joker Khandayat who is one of his brothers. In his
cross-examination, he has stated that he was alone present in
Baghiahudi jungle and grazing cattle. He denied a suggestion that he had
not stated to the police that Mata Munda threatned to kill him if he
disclosed the fact to anybody and that convicts-Mata Munda and Jiten
Munda raped the victim. He also denied a suggestion that he knew
nothing about the occurrence and deposing falsehood at the instance of
P.W.2 since he happens to be a co-villager. After two days of occurrence,
he learnt about the death of the victim from the police. An analysis of
evidence of P.W.16 would show that he is an eye-witness to the
24
commission of rape by Mata Munda and Jiten Munda. His version
relating to commission of such offence by Mata Munda and Jiten Munda
remains uncontrovertd in the cross-examination. However, with regard to
the presence of Harjeet Singh @ Saka @ Kana, the same cannot be
deduced from the evidence of P.W.16. Though he (P.W.16) deposed that
he knew Harjeet Singh @ Saka @ Kana, however, he has implicated only
Mata Munda and Jiten Munda and not Harjeet Singh @ Saka @ Kana.
Though in his examination-in-chief, he has stated that "I had not seen
the other accused persons since they were concealing their presence in
nearby area", however, this is clearly a contradictory statement as once
he has not seen the other accused persons, how could he deduce that
they have concealed themselves in a nearby area. In otherwords, it
means that despite knowing the convict, he has not implicated Harjeet
Singh @ Saka @ Kana. It is important to note here that he has nowhere
deposed of having seen the convict in the area along with Mata Munda
and Jiten Munda prior to/at the time of occurrence of rape.
P.W.17 deposed that he knew the victim as well as the convict -
Harjeet Singh @ Saka @ Kana present in the dock. According to him on
the date of occurrence, i.e., 1.8.2012, the victim had been to tuition at
Barbil. As she did not return, P.W.1 and others searched for her and her
naked body was located inside the Baghiahudi jungle. The symptom
showed that she was raped and murdered. Thereafter her body was
taken to Barbil Medical Hospital, where she was declared dead. He has
further stated that in his presence convict-Jiten Munda admitted his
guilt and led the police party to the place of occurrence and gave recovery
25
of school bag, a ball pen, some books and khatas which he had
concealed inside the bush. His statement has been marked as Ext.18 as
found from the L.C.R. and Ext.6/1 is the relevant seizure list. In his
cross-examination, he has stated that he saw Jiten Munda and Mata
Munda in police lock up. The statement of Jiten Munda was recorded in
the police station and he gave recovery of school bag, ball pen, books and
khatas on 13.8.2012. He denied a suggestion that Jiten Munda has
never given a statement before police under Section 27 of the Indian
Evidence Act.
P.W.18 is the constable, who produced the wearing apparels of the
victim which he had received from the medical after postmortem
examination and the same was seized by the I.O. as per the seizure list
(Ext.11). In his cross-examination, he has stated that the wearing
apparels belonged to the victim.
P.W.19 is the constable, who also says that P.W.29 seized the
wearing apparels of the deceased on 22.8.2012 on production of the
same by P.W.18. In the cross-examination he has stated that the seizure
was made at the police station.
P.W.20 claims to be an eye-witness of lifting of the victim by the
convicts Mata Munda and Jiten Munda and others. According to him, he
knows the informant, the victim and the convict - Harjeet Singh @ Saka
@ Kana present in the dock. The occurrence took place on 1.8.2012 on a
Rakhipurnima day. On the date of occurrence at about 9.30 A.M. while
he was moving on the roof of his house he saw Mata Munda, Jiten
Munda and two other boys standing near a Kusum tree near the public
26
road. At that time, he also saw a girl, aged about 13 years coming from
Barbil going towards village-Belakundi. Finding the girl alone the
convicts Mata Munda and Jiten Munda and two other boys lifted her to
nearby Baghiahudi jungle. After about 15-20 minutes, three other
persons came and went inside Baghiahudi jungle. Further about 45
minutes after, all the seven persons came out from jungle, all of them
were in a hurry, three persons went towards Barbil and four persons
went towards village-Belakundi. At about evening hour, he got a
telephone call from one of his friends who enquired about the incident of
rape and murder that occurred in the morning. Thereafter, P.W.20 went
to Barbil medical and found a gathering where he learnt that the victim,
who is the daughter of P.W.2 has been raped and murdered. Finding
A.S.I.-Rama Chandra Naik, he narrated the incident first to him and
came back. On 13.8.2012, P.W.20 was examined by the police. It may be
noted here that A.S.I.- Rama Chandra Naik was never examined by the
proseuction. In his cross-examination, he admitted that he never
disclosed about the incident either to P.W.2 or other persons present at
the hospital. The public road besides which the convicts Mata Munda
and Jiten Munda and others were standing runs about 300 meters from
his house and the Kusum tree stands just besides the road. The road
runs from north to south. He further admitted that the road is not a
busy road but public used to pass along that road. He denied a
suggestion that Baghiahudi jungle is located at about 1 K.M. away from
the public road and that he has not stated to the police that to the query
of Ganesh Apat over telephone, he narranted the incident to him. An
27
analysis of his evidence would show the strange conduct/behaviour
exhibited by P.W.20. Though he claims to know the victim and informant
and though he claims to have seen her being lifted by convicts Mata
Munda, Jiten Munda and two others to nearby Baghiahudi jungle,
strangely he did not raise any hullah and nor did he inform others/police
immediately. This clearly goes against natural human conduct and
throws a cloud on his version of he having seen the lifting of the
deceased. In view of such peculiar behaviour of P.W.20, his version about
lifting of the victim by convicts Jiten Munda and Mata Munda does not
inspire confidence. Though the occurrence of lifting took place at 9.30
A.M. he only disclosed about the same in the evening to one Ganesh
Apat, who has not been examined in this case. There also exists no
evidence to the effect that P.W.20 like P.W.16 was threatened with dire
consequences for which there was delay in his disclosing the matter to
others. In his cross-examination, he has also admitted that he has never
disclosed the incident to either P.W.2 or other persons present at the
medical. This is again a peculiar behaviour coming from a person who is
working as an agent in an Insurance Company as indicated in his
deposition. In any case, except saying that seven persons were involved,
he did not state the name of Harjeet Singh @ Saka @ Kana though he
claimed to know the convict present in the dock. Such a fact clearly goes
in favour of the above noted convict.
P.W.21 in his deposition has stated that he knows the convict. On
the date of occurrence, at about evening his younger brother, namely,
Tusa Munda came to him and told that while deceased Bindiya
28
Mahakuda was returning from tuition, convict-Mata Munda
accompanied by other convicts, lifted her to Baghuahudi jungle under a
Kusum tree. Sensing that he might divulge the incident, he threatened
him to kill him if he reported the matter to anybody. In cross-
examination, he has stated that he has neither seen the incident nor
gone to the spot. He came to know about the incident from his brother-
Tusa Munda.
P.W.22 like P.W.21 has stated that he knew the convict. According
to him, the occurrence took place on Rakhipurnima day and it was the
first day of the month. On the date of occurrence, the victim did not
return from tuition, whereafter, he accompanied by others searched for
her and found her naked body near a Kusum tree inside Baghiahudi
jungle. Thereafter, she was removed to the hospital where she was
declared dead. He also deposed about convict-Jiten Munda giving
recovery of black colour school bag. However, in his examination-in-chief
he has stated that after giving recovery of school bag, convict-Jiten
Munda stated before the police that at the time of occurrene, he was
accompanied by convict-Mata, Kanu, Nauru and his statement was
recorded in his presence. In his cross-examination, he has stated that by
the time he arrived at Baghiahudi jungle, he found the police, Jiten
Munda and many of the co-villagers of village Belakundi and he cannot
say about the topic of discussion held between them. In his presence,
Jiten Munda gave recovery of the school bag after bringing the same from
under the bush. According to him, it is a fact that people used to take
cattle folk for grazing in Baghiahudi jungle. An analysis of his evidence
29
shows that as he corroboartes P.Ws.2,3,5 & 9 with regard to search and
locating dead body. However, with regard to giving recovery of the school
bag, he has stated that after giving recovery convict Jiten Munda stated
before the police about occurrence. So with regard to recovery of School
Bag, his version is of no use.
P.W.23 is the Havildar, who on 13.8.2012 produced the nail
clipping, nail scrappings, pubic hair and sample semen kept in sealed
vial and the same was seized by P.W.29. In the cross-examination, he
has admitted that though he produced the above articles before the I.O.,
inadvertently his signature was not obtained by the I.O. in the seizure
list.
P.W.24 says that he knows the informant and the convicts in the
dock. The deceased was the daughter of P.W.2 and the occurrence
occurred on 1.8.2012 at about 9.30 A.M. at Baghiahudi jungle. Just
prior to the occurrence the deceaed was coming from Barbil towards her
house from tuition. Near Baghiahudi jungle, convict-Mata Munda lifted
her inside the jungle and raped her and the other accused persons also
joined him and raped her. A shepherd boy, who has seen the occurrence,
narrated the incident to him. In his cross-examination, he admitted that
he has not seen the occurrence and when police came to the spot, he
called the shepherd boy to the spot and on enquiry, he narrated the
incident to the police. Since he was present near the police, he has heard
the same. Thus, P.W.24 is a heresay witness and much importance
cannot be given to his version.
30
P.W.25 is a videographer, who took videography of postmortem
examination. In his deposition, he has stated that he does not know the
victim but has seen her dead body. He videographed the post-mortem
examiantion and on 13.8.2012, three accused persons confessed their
guilt which was also videographed on police requisition. In his cross-
examination, he stated that after doing videography, he submitted the
entire film to the I.O. and he does not know about the convicts. It is
important to note here that these DVDs were never produced before the
learned trial court though the seizure lists pertaining to those were
exhibited.
P.W.26 is the Havildar who had taken convict-Jiten Munda to
Barbil medical for his medical examination.
P.W.27 is the A.S.I., who stated that on 2.8.2012, P.W.29 seized
the wearing apparels and other articles of the victim after her
postmortem examination and this has been duly reflected in the seizure
list under Ext.22, as found from LCR. The above seized articles were
produced by P.W.18.
P.W. 28 is the second I.O., who took over the investigation on
25.9.2012 from P.W.29. In his statement he stated that he examined
P.W.2 and other witnesses, re-visited the spot, sent wearing apparels of
the deceased and convicts and the biological sample of the deceased and
convicts along with one 'Dauli', the weapon of offence to S.F.S.L.,
Rasulgarh, Bhubaneswar for chemical examiantion. On 5.12.2012, he
filed charge sheet against Mata Munda, Jiten Munda, Biswanath Gope @
Naru and Tapu @ Mangal Purty @ Suri showing three others including
31
Harjeet Singh @ Saka @ Kana as absconders. He also stated that he
arrested Harjeet Singh @ Saka @ Kana on 18.6.2013 and sent him for
medical examination. He also seized the wearing apparels of the above
convict and collected his biological sample. In his cross-examination, he
has stated that even if he re-examined the witnesses, still then, he did
not record their statements separately as they did not add more to the
earlier statements. He denied a suggestion that without any evidence
against the convicts he charge sheeted them at the instance of the
informant.
P.W. 29 is the main I.O., who conducted investigation in this case.
As per his deposition, he was working as S.I. of police at Barbil Police
Station on 1.8.2012. On that date, P.W.2 presented a written report
before him. Accordingly, he registered Barbil P.S. Case No.128 of 2012
and took up investigation. He further stated that the written report was
treated as F.I.R. under Ext.1. After registration of the case, he drew up a
formal F.I.R. which has been marked as Ext.1/3. During course of
investigation, he examined P.W.2 at the Police Station. Later, he held
inquest over the dead body and prepared the inquest report under Ext.2.
He dispatched the dead body to the medical officer requesting to conduct
postmortem examination with a request to record the postmortem report
by way of videography. Thereafter, video casettee was seized from the
videographer. Next date, he visited the spot with scientific team and
prepared spot map. As per the request of medical officer, Barbil, he sent
biological materials of the deceased to District Headquarters Hospital,
Keonjhar and also seized the wearing apparels of the deceased under
32
seizure list. On 12.8.2012, he rescued convict-Mata Munda. On
13.8.2012, upon examination, he disclosed about the involvement of
other convicts. Then, he formally arrested convict-Mata Munda. While in
police custody, Mata Munda stated that he along with others killed the
deceased after raping her and kept concealed the 'Dauli' with which he
killed Bindiya Mahakuda inside the jungle. This statement has been
marked as Ext. 17 as found from L.C.R. Thereafter, Mata Munda led
him, witnesses and others to the spot and gave recovery of that 'Dauli',
which was seized by him vide seizure list under Ext.6/1. Then, he seized
the wearing apparels of Mata Munda, examined the seizure witnesses
and sent Mata Munda to the medical seeking opinion of the doctor as to
whether he has committed the offence of rape or not. On 13.8.2012, he
also got information that convict-Jiten Munda has concealed himself at
Baghiahudi jungle. Accordingly, he arrested Jiten Munda on 13.8.2012
at 10.30 P.M. Then, he recorded his statement and videographed the
same. In his statement, he provided information that he has kept
concealed the school bag of the victim inside Baghiahudi jungle. Then,
he recorded his statement under Section 27 of the Indian Evidence Act in
presence of witnesses which has been marked as Ext.18. Thereafter,
Jiten Munda led him and the police party and others to the spot of
concealement and gave recovery of school bag of deceased which was
seized from the sopt under the seizure list, Ext.19 as per L.C.R. Then, he
sent Jiten Munda for his medical examination. On 13.8.2012, he
arrested Biswanath Gope @ Naru and seized his wearing apparels and
sent him for medical examination and also recorded the confessional
33
statement of Biswanath Gope @ Naru and videographed it and seized
C.D. The relevant seizure list has been exhibited. On 13.8.2012, he
forwarded Mata Munda, Jiten Munda, Biswanath Gope @ Naru to the
court. On 20.8.2012, he produced postmortem examination report along
with seized 'Dauli' before the medical officer and sought for her opinion
as to whether the deceased could have been killed by that 'Dauli' and she
answered in the affirmative. On 23.8.2012, he sent the seized articles to
S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination through
court. On 6.9.2012, he arrested convict- Tapu @ Mangal Purty @ Suri
from his house and seized his wearing apparels and sent him for medical
examination. Later on, P.W.28 took charge of investigation. In his cross-
examination, he denied the suggestion that he has not investigated the
case properly. It is important to note that the 'Dauli', 'School Bag', etc.
were never produced before the learned trial court during trial.
10. In the background of discussion made above, now let us examine
various contentions raised by the learned Amici Curiae and Mr.
J.Katikia, learned Addl. Government Advocate.
11. With regard to contention of learned Amici Curiae, Mr. Panda and
Mr.Dhal, pertaining to evidence of P.W.20, we agree with their
contentions that in the background of peculiar conduct exhibited by
P.W.20, his evidence does not inspire confience. Despite claiming to
know the victim and her father, he neither raised a hullah nor
immediately informed the police while he saw lifting of the victim. He
remained a mute spectator though he knew the victim. He also did not
disclose such fact to either P.W.2 or others at Medical. Such peculiar
34
conduct raises a serious doubt about his version of he having seen the
lifting of victim. According to us, the learned Additional Sessions Judge,
should not have relied upon such a witness, who appears to be a got up
witness.
12. With regard to delayed examination of P.W.16 by the police on
8.8.2012, in the facts and circumstances, we do not think any thing
turns on that as P.W.16 in his evidence has in no way implicated Harjeet
Singh @ Saka @ Kana. In fact, there exists no evidence worth the name
with regard to convict - Harjeet Singh @ Saka @ Kana. P.W.16 while
deposing about the presence of convicts-Mata Munda and Jiten Munda
has not uttered the name of this convict despite claiming to know him.
Even though we have rejected the version of P.W.20, still then he despite
knowing the convict has also not implicated him. With regard to
argument relating to non-existence of pre-planning, we have no
hesitation to say that there exists no evidence on the same vis-à-vis the
present convict. With regard to non-examination of Rebati Behera,
according to us, nothing much turns on that because said Rebati Behera
about whom P.Ws.3,4,5 and 13 have deposed, has not said anywhere
that she had seen any occurrence either of rape or murder implicating
the convict. As per P.Ws.3,4,5 and 13, their only version was Rebati
Behera told them that she had seen the victim walking along side the
Baghiahudi jungle. The submission of learned Amici Curiae relating to
P.W.11 not stating about commission of gang rape is of not much
importance so far as present convict is concerned in absence of proof of
35
common intention/premediation involving the convict and when the eye-
witness has not implicated the convict - Harjeet Singh @ Saka @ Kana.
13. With regard to submission of learned Amici Curiae that trial court
has travelled beyond the frontiers of law by putting reliance on entire
statements made by convicts-Mata Munda & Jiten Munda under Section
27 of the Evidence Act, 1872 involving the convict, we accept the same.
In this connection, we would like to quote the following passage from the
case of Pulukuri Kottaya and others (supra) :
"Section 27, which is not artistically worded, provides an
exception to the prohibition imposed by the preceding section, and
enables certain statements made by a person in police custody to
be proved. The condition necessary to bring the section into
operation is that discovery of a fact in consequence of information
received from a person accused of any offence in the custody of a
Police officer must be deposed to, and thereupon so much of the
information as relates distinctly to the fact thereby discovered may
be proved. The section seems to be based on the view that if a fact
is actually discovered in consequence of information given, some
guarantee is afforded thereby that the information was true, and
accordingly can be safely allowed to be given in evidence; but
clearly the extent of the information admissible must depend on the
exact nature of the fact discovered to which such information is
required to relate. Normally the section is brought into operation
when a person in police custody produces from some place of
concealment some object, such as a dead body, a weapon, or
ornaments, said to be connected with the crime of which the
informant is accused. Mr. Megaw, for the Crown, has argued that in
such a case the "fact discovered" is the physical object produced,
and that any information which relates distinctly to that object can
be proved. Upon this view information given by a person that the
body produced is that of a person murdered by him, that the
weapon produced is the one used by him in the commission of a
murder, or that the ornaments produced were stolen in a dacoity
would all be admissible. If this be the effect of section 27, little
substance would remain in the ban imposed by the two preceding
sections on confessions made to the police, or by persons in police
custody. That ban was presumably inspired by the fear of the
Legislature that a person under police influence might be induced
to confess by the exercise of undue pressure. But if all that is
required to lift the ban be the inclusion in the confession of
information relating to an object subsequently produced, it seems
reasonable to suppose that the persuasive powers of the police will
prove equal to the occasion, and that in practice the ban will lose
36
its effect. On normal principles of construction their Lordships
think that the proviso to S.26, added by S.27, should not be held to
nullify the substance of the section. In their Lordships' view it is
fallacious to treat the "fact discovered" within the section as
equivalent to the object produced; the fact discovered embraces the
place from which the object is produced and the knowledge of the
accused as to this, and the information given must relate distinctly
to this fact. Information as to past user, or the past history, of the
object produced is not related to its discovery in the setting in
which it is discovered. Information supplied by a person in custody
that " I will produce a knife concealed in the roof of my house" does
not lead to the discovery of a knife; knives were discovered many
years ago. It leads to the discovery of the fact that a knife is
concealed in the house of the informant to his knowledge, and if the
knife is proved to have been used in the commission of the offence,
the fact discovered is very relevant. But if to the statement the
words be added "with which I stabbed A" these words are
inadmissible since they do not relate to the discovery of the knife in
the house of the informant."
Further in Anter Sing v. Stare of Rajasthan reported in
(2004) 10 SCC 657, the Supreme Court has summed up various
requirements of Section 27 as follows:
"(1) The fact of which evidence is sought to be given must be relevant to the
issue. It must be borne in mind that the provision has nothing to do with
question of relevancy. The relevancy of the fact discovered must be established
according to the prescriptions relating to relevancy of other evidence connecting
it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received
from the accused and not by accused's own act.
(4) The persons giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an
accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or
strictly to the fact discovered can be proved. The rest is inadmissible."
Keeping in mind the above, it is clear that under Section 27 of the
Indian Evidence Act, a court can rely upon that much of information
37
which has led to discovery of 'Dauli' and 'School Bag', etc. and not all the
confessional statements made before the police under Exts. 20 and 21.
Thus, vis-à-vis Mata Munda the admissible information is "DAULI KU
MU NEI xxx xxx xxx EKA SIMILI GACHHA TALE THIBA LATI BHITARE
LUCHEI DEI MORA GHARAKU PALEI ASILI XXX XXX xxx APANAMANE
MO SAHITA GALE, MU UKTA JAGAKU NEIJIBI O LUCHEI RAKHITHIBA
DAULIKU BAHARA KARIDEBI" (Translated by this Court- I took the
"Dauli" and hid the same inside a bush under a simili tree and came
back to my house xxx xxx xxx If you accompany me, I will take you to
that place and bring out the hidden "Dauli"). Similarly, with regard to
convict-Jiten Munda, only the following statement is admissible. "xxx MU
BINDIYAR KALA RANGARA SCHOOL BAG KU xxx xxx xxx EKA LATI
BHITARE LUCHAI DELI XXX APANAMANE MO SAHITA GALE UKTA
JAGAKU NEI JIBI O LUCHEI THIBA SCHOOL BAG KU BAHARA
KARIDEBI XXX"- (Translated by this Court-I hid the school bag of Bindiya
inside a bush xxx. If you accompany me, I will take you to that place and
will bring out the hidden school bag)."
Except the above quoted informations, nothing more from the
statements involving the present convict should have been relied upon by
the learned trial court while making its own analysis. It appears the
learned trial court has failed to take into consideration the well settled
principle vis-à-vis Section 27 of the Evidence Act, 1872. Moreover, the
'Dauli' and 'School Bag' were not produced before the learned trial court.
Thus, these discoveries were never proved. Had these been produced,
these could have been confronted to the seizure witnesses and the school
38
bag could have been identified to be the bag of the deceased by his
relatives like P.Ws.1,2, 3 and 4. In such background, leading to discovery
has lost all its meaning in the present case.
14. To sum up, P.W.16-an eye-witness, despite claiming to know the
convict-Harjeet Singh @ Saka @ Kana has not implicated him. Though
we have not accepted the evidence of P.W.20, even then he has also not
implicated him despite claiming to know him. There exists no evidence
relating to prior concert involving the convict and others. Lastly, as
pointed out earlier the entire statements made by Mata Munda and Jiten
Munda involving the convict are not admissible in evidence except to the
extent indicated above. Thus, the evidence either oral or circumstantial
is highly deficient to rope in Harjeet Singh @ Saka @ Kana and he cannot
be held guilty either under Section 376(2)(g), I.P.C. or under Section
302/34, I.P.C. Consequently, he also cannot be held guilty for having
committed the offencs under Section 201/34, I.P.C. Thus, we set aside
the senences under Sections 376(2)(g)/302/34, I.P.C. and acquit Harjeet
Singh @ Saka @ Kana of all criminal charges. Accordingly, we direct that
he should be set at liberty forthwith if he is not wanted in connection
with any other case. Accordingly, the reference made by the learned trial
court is discharged and JCRLA filed by the appellant is allowed. Before
concluding, we would be failing in our duty if we do not record our
appreciation about the able asistance rendered to this Court by learned
Amici Curiae, namely, Mr. Debasis Panda and Mr. D.P. Dhal. In fact their
assitance has been of great help in disposing of the present DSREF and
JCRLA.
39
The DSREF and JCRLA are accordingly disposed of.
.................................
Biswajit Mohanty, J.
I. Mahanty, J.I agree.
................................. I. Mahanty, J.
Orissa High Court, Cuttack The 23rd June, 2017/bns